A criminal defendant has the Constitutional Right to confront his accusers in open court. This is referred to as the Confrontation Clause in the United States Constitution. The purpose of the clause, for one, is to prevent false accusations by requiring that the complaining witness appear in Court and testify against the accused. It also allows the defense an opportunity to show or demonstrate that the complaining witness is lying (if he is lying), or not credible.

The United States Supreme Court ruled today on Michigan v. Bryant, and may have complicated the Confrontation Clause. In this case a shot and dying man told police at the scene that he was shot by Richard Bryant. The victim died from his wounds before trial. The police testified as to what they were told, namely that the victim identified Richard Bryant as the shooter. Bryant was convicted at the trial, but the Michigan Supreme Court overturned the conviction stating that the judgment ran afoul of the Confrontation Clause. Today, the Supreme Court, in a 6-2 ruling, held that the conviction was valid and hearsay evidence (the testimony of the police) can be used when a victim of violent crime is unable to testify. The admission of the testimony has to do with the purpose of the statement. Justice Sotomayor, writing for the majority, said:

…the state court had made a mistake in considering Mr. Covington’s statements to be “testimonial” and hence subject to the Confrontation Clause. Testimonial statements, she explained, are ones solemnly made to establish facts about past events.

The primary purpose of Mr. Covington’s statement was something else, Justice Sotomayor wrote. It was to aid the police in addressing an “ongoing emergency,” given that the person who shot Mr. Covington had a gun and was on the loose.

The testimony may have been allowed based on the “dying declaration” hearsay exception. A dying declaration will allow testimony that is otherwise hearsay, if:

The declarant is unavailable;

The declarant’s statement is being offered in a criminal prosecution for murder, or in a civil action;

The declarant’s statement was made while under the belief that his death was imminent; and

The declarant’s statement must relate to the cause or circumstances of what he believed to be his impending death.

However, the prosecution never raised this issue, nor did the supreme Court in today’s decision. So now the interplay between a dying declaration and the Confrontation Clause, are completely in turmoil.

Justice Scalia wrote a scathing dissent of the decision, and while I never believed that I would agree with Justice Scalia on anything, I believe he is correct here. There already exists an exception for such evidence to come into evidence. If the testimony is not properly entered, we should not be creating further exceptions and loopholes for the admission of tainted evidence. In the end, a conviction based on no more than the words of a police officer allegedly recanting the words of a dying man, who may or may not have been delirious from pain or loss of blood, is troubling.

Rhode Island enacted the Racial Profiling Prevention Act in 2004 (under R.I.G.L. 31-21.1) in response to similar statutes passed in most States. The unfortunate reality is that racial profiling exists and happens everyday, everywhere. The racial disparity in the number of traffic stops, arrests, convictions, and length of sentence between whites and all other races can not be ignored. Some statistics from Amnesty International are hard to be ignored:

Racial profiling is a proven failure in the ‘War on Drugs.’ Statistics show that using racial profiling to interdict highway-bound drug couriers is not just wrong, but ineffective. A survey by the Department of Justice in 1999 reveled that while officers disproportionately focused on African American and Latino drivers, they found drugs more often when they searched whites (17%) than when they searched African Americans (8%). A similar survey in New Jersey found that although people of color were searched more frequently, state troopers found drugs in vehicles driven by whites 25% of the time, by African Americans 13%, and by Latinos 5%. According to a study of the US Customs Service’s practice by Lamberth Consulting, when Customs agents stopped using racial profiling to target potential smugglers and began focusing on race-neutral factors such as behavior, they increased the rate of productive searches by more than 300%.

The Rhode Island General Assembly admitted that racial profiling existed in R.I.G.L. 31-21-2.2 (c) “In many communities nonwhite drivers in Rhode Island, subjected to discretionary searches, are twice as likely as whites to be searched.” They also admit that racial profiling causes fear, anxiety, humiliation, and resentment among people unjustifiably treated as criminal suspects and can result in a loss of confidence and public trust in the police and criminal justice system.

The new proposed laws look to take an even tougher stance to combat racial profiling. Some of the suggested components include:

requiring officers to document in writing their probable cause for conducting a search during a traffic stop

bar police from requesting documentation other than license and registration without reasonable suspicion of criminal activity

bar officers for asking passengers for identification without probable cause

restrict searches on juveniles

While probable cause for search and seizure always plays a role in a criminal defense case, those who feel they have been subjected to racial profiling are also allowed to sue for damages in civil court.

This week a new client came into my office following a very serious car accident. He suffered significant injuries and was rushed to Rhode Island Hospital. The accident happened over a week ago and he told me that he thought he had to wait for the police report before contacting an attorney. For my client, the delay did not effect the case, but it occurred to me that other people may also be under the belief that they need to wait for the police report.

This is absolutely untrue. In fact, in order to ensure that things go smoothly and that you receive fair compensation, it is best for your personal injury attorney to get started right away on your case. For my clients, I begin working cases immediately after the consultation. In addition, my office handles the property damage claim and we can get started on that right away so that you are not without your car for longer than necessary.
Your lawyer will obtain the police report when it becomes available. Depending on where in Rhode Island your accident occurred, the police report can take anywhere from 2-7 days to become available. It is not worth waiting this much time before calling your attorney. After all, police reports are helpful to identify insurance information and confirm the facts of loss, but they rarely make a major difference in a personal injury case.

A herniated disc is one of the more common serious injuries to occur following an auto accident. It is a potentially life changing injury that may require high risk spinal surgery. It is a more serious injury than ordinary whiplash and must be treated as such by your attorney.

What is a Disc Herniation?

Each of us has a small gel like cushion (the disc) between each vertebrae in our spinal column. This disc is what allows us to bend, twist, and turn our spine without pain. In a serious auto accident, the shock to the spine can cause this disc to rupture. This causes a great deal of pain for two reasons. First, you no longer have the necessary cushion to protect the vertebrae from “rubbing” against each other. Second, the herniated disc can move inside the spinal column and rub against spinal nerves causing a great deal of pain not only to the back, but radiating into the arms and legs. If your pain extends away from your back and into your limbs, your doctor will likely order an MRI to confirm the existence of a herniated disc.

The Insurance Company Will Almost Always Deny These Claims

If you have suffered a bulging disc (a disc injury that has not completely ruptured) or a herniated disc, you need to have an experienced personal injury attorney who understands how insurance companies think and who is willing to file a lawsuit to ensure you receive fair compensation. This is because insurance companies frequently deny that a herniated disc is related to an auto accident. Here’s why…

The vertebral discs, like every other part of our body, tends to break down as we age. People as young as 30 can already show signs of disc deterioration and a high percentage of the population already have bulging discs. Men and women who are athletic or work in physical occupations are very likely to show some evidence of disc damage even before an auto accident. For this reason, insurance companies will always argue that the disc injury was pre-existing and unrelated to the auto accident.

Don’t Let the Insurance Companies Ignore Your Disc Herniation

Most auto accidents result in damage to the soft tissue of the neck and back, a so-called whiplash injury. A disc herniation is not the same as whiplash and your settlement amount should not be the same as a whiplash victim, either. As a former insurance adjuster, I know how the insurance companies approach spinal injury claims, and I will use that knowledge to obtain the best possible result for you.

The simple answer to the above question would appear to be, yes. Prisons are overcrowded, millions of free citizens live with years of probation hanging over their head, prisoner reform does not work, and the Courts and public defenders in many States are completely overwhelmed.

A Bipartisan group composed of lawyers, judges, lawmakers, and civil rights groups called the Constitution Project, have issued their suggestions for comprehensive overhaul of the criminal justice system. While there was not unanimous support for every recommendation, some of the proposed reforms include:

Mandatory recordings of police interrogations

Improvements to and increased financial aid to Public Defenders

Increased efforts to improve prisoner reform and transition back into the world

Push Congress to create a bipartisan criminal justice commission

Evaluate and eliminate racial and ethnic disparity in criminal charges and sentencing

Address the current conditions inside the prisons

The criminal justice and prison system is in dire straits and is unlikely to change any time soon. The unfortunate reality is that politicians do not win votes by assisting prisoners and criminal defendants.

The strange idea actually comes from a Bristol County Massachusetts District Attorney. As with many counties across the country, Bristol County Massachusetts suffers from a high number of no-shows to Court. Defendants arrested or released on bail (most often personal recognizance) simply fail to show up for their next Court date. A bench warrant is almost certain to follow, meaning that the defendant can be arrested and imprisoned at any time. Absent an arrest, the underlying charges remain open while the defendant refuses to show for Court.

It is a big problem and I would be willing to guess that the number of existing bench warrants in Rhode Island and Massachusetts is staggering. A Massachusetts District Attorney, with seeming disregard for the Sixth Amendment of the Constitution, has suggested a novel approach to this growing problem… Proceed with the Defendant’s trial without him!

The idea is to try criminal defendants who do not show up for their Court date, in absentia. In their absence. Since most of these defendants do not have criminal defense attorneys representing them, it all but ensures a conviction. Nevertheless, any conviction under such a statute would almost certainly be reversed as a Constitutional violation.

The Sixth Amendment of the Constitution ensures that a defendant has the right to confront his or her accusers:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

I can not see how any proposed statute to this effect could survive a Constitutional challenge. We simply can not waive our constitutional freedoms away, or have them brushed aside because of a failure to assert them.

One of the most frequent questions I hear from criminal defense clients is: “What is the difference between a plea of guilty and a plea of nolo contendre?” There is quite a bit of difference, actually, and you should speak with your criminal defense attorney to discuss which is the best plea option for your case.

Nolo Contendre comes from the latin meaning, “I do not wish to contend.” This is where the term “no contest” comes from. By pleading nolo contendre you are neither admitting or disputing the charges, you are telling the Court that you do not wish to fight the charges. It is, in essence, a guilty plea and the sentence will be imposed as such. The difference between nolo contendre and an ordinary guilty plea is whether the offense will count as a conviction in the State of Rhode Island.

If you plead guilty to a crime, it is a conviction in the State of Rhode Island. Under certain circumstances, however, you can plead nolo contendre instead, and the crime might not be considered a conviction in the State of Rhode Island. This could be a crucial difference during a job hunt when the employer asks if you have ever been convicted of a crime.

Under Rhode Island General Law 12-18-3, if you plead nolo contendre and are placed on probation, so long as there is no violation of the probation, then the offense will not be considered a conviction for any purposes. This means that you can rightfully tell current or prospective employers that you have never been convicted of a crime, and evidence of that crime likely can not be used against you in subsequent legal proceedings.

Pleading nolo does not always guarantee that there will be no conviction. If the plea is for a crime of violence, or if the sentence includes time to serve in the ACI, then even a nolo plea will be a conviction in the State of Rhode Island. There are other circumstances and factors that can effect your decision whether to plead nolo or guilty, but it is definitely worth exploring with your criminal defense attorney. Many misdemeanors for non-violent crimes will be plead out with nolo contendre rather than a straight guilty plea.

Many people are unaware that in Rhode Island and Massachusetts, properly prescribed medications can result in an arrest for DUI if the side effects of the drug render you unable to safely drive a motor vehicle. Obviously, there is no breathalyzer test for prescription medications, but Rhode Island General Law 31-27-2 holds that:

Proof of guilt under this section may also be based on evidence that the person charged was under the influence of intoxicating liquor, drugs, toluene, or any controlled substance defined in chapter 28 of title 21, or any combination of these, to a degree which rendered the person incapable of safely operating a vehicle. The fact that any person charged with violating this section is or has been legally entitled to use alcohol or a drug shall not constitute a defense against any charge of violating this section.

The last line above is clearly key – Legal use is not a defense! When prescribed medication, be sure to discuss the side effects with your doctor. Try not to drive your vehicle until you are sure how the drugs effect you. If you feel drowsy or dizzy while on the medication, it is best to avoid driving because it can result in an auto accident or arrest for DUI.

It is in your best interest to hire an experienced criminal defense attorney early to begin attacking the State’s case. With an aggressive attorney representing you we may be able to show that the drug did not effect you as severely as reported by the police. With the proper representation, a DUI case with no breathalyzer or other evidence of intoxication, may be thrown out.

Two things that happened this week give rise to this post about food poisoning and food allergy cases.

The class action lawsuit filed against Taco Bell alleging that their “ground beef” is actually only 35% beef and 65% filler (there is no allegation that they have recently poisoned anyone, I just find the headline revolting!);

I had an inquiry this week from a person who was injured after eating a food they were allergic to in a buffet.

Food safety is a major issue these days. Pressure to reduce prices has resulted in increased cases of food recalls, foodborne illnesses, and an overall reduction in quality. The Center for Disease Control estimates as many as 76 Million cases of foodborne illness occur in the US each year!!! Many of these cases are mild, but 300,000 or more are hospitalized and 5,000 people die each year as a result of food poisoning.

Food poisoning occurs when food contaminated with bacteria such as Salmonella, E. Coli, or Listeria, among others, is ingested. Symptoms can include nausea, abdominal pain, headache, vomiting, dehydration, fever, etc. As previously indicated, the most serious cases can result in prolonged hospital stays or even death.

What is the difference with food allergy claims?

Food allergy lawsuits do occur, but it is not as simple as being sickened by a food product. Even a harmless, bacteria-free, peanut can be deadly to someone with a nut allergy. Planters would not be liable for the damages caused to a person with a nut allergy unless the peanuts contained some form of bacteria.

However, if you are dining in a restaurant and inform your waiter or cook of a food allergy, and they serve you that item without your knowledge causing sickness, then you have grounds for a claim.

Broadcast Music, Inc, better known as “BMI” and one of the two major music royalty collection agencies, has launched a new program, simply titled “BMI Live” to help collect performance royalties for performers at any stage in their career.

Artists who have an account with BMI and register their music with them will now be able to input their live performances online. Once logged in to your online account, performers will have to input the day, time, and location of the venue for the concert along with the setlist performed. BMI will collect royalties for the live performance and issue quarterly payments to the songwriters, performers, and publishers.

Since this is a new program, the obvious question is: How will performance royalty rates be calculated. Here is the answer from their website:

Rates per performance each quarter are determined by a combination of the number of performances reported during the payment period and the general licensing fees available for distribution for BMI Live performances. Since the number of BMI-licensed works, as well as the amount of the license fees collected by BMI, changes from quarter to quarter, the royalty rate for BMI Live works likewise will vary from quarter to quarter.

Additional answers to frequently asked questions can be found here. This is an exciting new program (even though I personally prefer ASCAP) and a program that is long overdue. I am intrigued to see how it works out, but I encourage all of my clients, especially those already registered with BMI, to take advantage of this new program.

If you are a band, solo musician, or songwriter seeking a music attorney to assist your career, please contact my office for a free consultation.